Haryana

Yamunanagar

CC/717/2013

Jitender Sharma S/o Vishnu Swarup Sharma - Complainant(s)

Versus

Mr.Ankur Aggarwal Of Pioneer Aircon - Opp.Party(s)

Rajiv Chawla

25 Sep 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR AT AJGADHRI.

 

                                                                        Consumer Complaint No.717 of 2013.

                                                                        Date of Institution:27.9.2013.

                                                                        Date of Decision:25.9.2017.

 

Jitender Sharma aged 55 years son of Sh.Vishnu Swarup Sharma, Director M/s Pandit Automobiles Private Limited, Gobinpuri Byepass, Road, Jagadhri.

                                                                                                …Complainant.

                                                Vs.

1.         Mr. Ankur Aggarwal of Pioneer Aircon, 38 Manuli House, Ambala City.

2.         Blue Star Limited Adarsh mall 4^th floor, Plot No.50, Industrial and Business Park, Phase-II, Chandigarh.

…Respondents.

 

                                                Complaint under section 12 of the

                                                Consumer Protection Act.

CORAM:        SH.SATPAL………..PRESIDENT,

                        SH.S.C.SHARMA,    MEMBER.

                        SMT. VEENA RANI SHEOKAND, MEMBER.

 

Present: Sh.Rajiv Chawla, Adv. for complainant.

               Sh.Atul Jaiswal, Adv. for OPs.

 

ORDER:         (SH.SATPAL PRESIDENT)

 

1.                     The complainant filed this complaint under section 12 of the Consumer Protection Act against the respondents (hereinafter the respondents shall be referred as Ops).

2.                     Brief facts of the complaint are that for the renovation in the showroom and to provide the best services to its customers, the complainant decided that the ducted split units are required to be installed in the showroom for better air conditioning system instead of window Air Conditioner.  Accordingly, the quotations were invited from various companies who deal in such type of work.  Op No.1 approached the complainant for installation of the ducted split units in the showroom which are manufactured by the OP No.2 and after mutual agreement, Ops agreed to install the ducted split and accordingly two units were installed in the showroom on 4.6.2012 and OP No.1 had charged a sum of Rs.5,00,000/- on account of cost of units, installation and commissioning of plant.  OP No.1 assured that units are of best quality and in case of any defect in one year, the same will be removed free of costs.  Installation of the aforesaid units were done by the technical engineer of Op No.1 as per their installation norms and the complainant, being stranger to the procedure never interfered in the process.  The technician of OP No.1 also assured that units are perfectly all right and the process adopted for installation is according to the instructions issued by the OP No.2.  The complainant was surprised to note that the units installed by OP No.1 and supplied by the Op No.2 in the showroom started giving problem as they were not working in proper manner and were not giving cooling effects as promises.  Immediately, the complainant contacted the Ops regarding non functioning of AC units and because of this problem, the customers who were visiting the showroom have suffered a lot.  Even the working of employees of complainant’s company, have also been affected.  When the problem in the units occurred, the same was under warranty.  Complainant and his employee Mr.Pardeep Dua from accounts department contacted the Ops many times telephonically and all the times Ops assured that the problem will be solved at the earliest.  In spite of promises made by the Ops, the problems present in the units were not removed and they did not pay any heed to the request of the complainant and kept on putting off the matter onone pretext or the other.  In the meantime, the warranty period of the units had elapsed.  Complainant immediately brought this fact in the knowledge of Ops and Mr.Rajesh Verma of the Op No.2 and Mr.Anuj of OP No.1 visited the showroom on 26.6.2013 and found that one compressor of the unit was defective and asked the complainant that the same will be replaced on chargeable basis, which shows the malafide intention of the OPs.  They deliberately did not visit the showroom earlier and caused great financial loss to the complainant.  Finding no way to keep his business running smoothly, the complainant had agreed for replacement of the defective compressor and paid a sum of Rs.44,114/- as cost of new compressor to Op No.1.  In fact the compressor of the unit was defective from the very beginning but the Ops intentionally supplied and installed the same in complainant’s showroom.  Even after the replacement of compressor, the units were not functioning as per their specifications, and again the complainant contacted the Ops through email dated 18.7.2013 and they sent their engineer Mr.Pyare Lal in the showroom and the complainant was shocked to hear from him that gap between the units and wall is quite less and installation of units were not done in correct manner and because of this the units are not working properly. Initially, the fitting of the ODU were done by the technician of Op No.1 and at that time this fact has not been told to the complainant but just to avoid the liability Op No.1 sent a false reply that ODU location where the units are installed was suggested by the employee of the complainant’s company which is altogether wrong. The employee of the complainant’s company was not a technical person to suggest where the ODU were to be installed.  In fact none of the employee of the company had given any suggestion to the engineers of Op No.1 for the location of the ODU.  On account of the above said reasons, it is clear that the defective units were supplied by the OP No.2 to the complainant and the same were also not installed as per norms as such the units are not working properly.  The complainant sent a legal notice dated 24.7.2013 to the Ops calling upon them to replace the defective units with new one and re-install the same as per correct norms but in spite of complying with the terms of notice Op No.1 sent a reply dated 29.7.2013 by denying all the allegations and till today no action has been taken to correct the units problem by the Ops.  The complainant is entitled for Rs.5,44,114/- charged by OP No.1 and a sum of Rs.2,00,000/- on account cost and damages suffered by the complainant as a result of unfair trade practice and deficiency in service and further the Ops are liable to pay Rs.11,000/- as cost of unnecessary litigation and prayed for necessary directions. 

3.                     Upon  notice, the Ops appeared and filed their reply jointly by taking some preliminary objections that the complaint is not maintainable under the C.P.Act as the ducted split units were installed by the Ops in the commercial premises of M/s Pandit Automobiles Pvt. Ltd. for commercial purpose; the complaint has been filed in the name of individual and also against the name of Ankur Aggrwal who is neither the owner nor the partner of Pioneer Aircon and there is no relationship of consumer and supplier between the parties; there is no deficiency in service on the part of the Ops.  On merits, controverted the plea taken by the complainant and submitted that M/s Pioneer Aircon who is dealer of Op No.2, had installed the ducted split unit in the complainant’s company to their satisfaction.  There was no complaint with the OP from the side of the complainant up to the warranty period which is an ample proof that the units worked well during this period and after that the results depended up the handling of the same by the complainant.  Mr. Pardeep Dua never contacted the Op with regard to the working of the units prior to the warranty period.  However, as and when the complainant company contacted the OPs they attended their problem and OP replaced the compressor on 17.7.2013 which was found defective after the warranty.  The OP attended whenever they were called and found that the units installed by them have been working perfectly.  The units were installed on the place where the complainant asked them to do so and they were instated as per norms. There is no deficiency in service on the part of the Ops and prayed for dismissal of complaint with costs. 

4.                     To prove the case, the counsel for the complainant tendered into evidence affidavit of Shri Jitender Sharma Director of M/s Pandit Automobiles as annexure CX, documents such as copy of bill dated 26.5.2012 as annexure C.1, copy of letter to Pioneer Aircon dated 19.5.2012 as annexure C.2, copy of purchase order dated 19.5.2012 as annexure C.3, copy of bill for Rs.44,114/- as annexure C.4, copy of email dated 20.7.2013 as annexure C.5, copy of legal notice as annexure C.6, postal receipts as annexure C.7 & C.8, reply of legal notice as annexure C.9, copy of quotation/bills as annexure C.10 to C.15, copy of receipt of Rs.4500/- as annexure C.16, copy of receipt of Rs.7224/- as annexure C.17, copy of receipt of Rs.44,114/- as annexure C.18, copy of bill for Rs.50,600/- as annexure C.19, copy of bill for Rs.19500/- as annexure C.20, copy of bill for Rs.19900/- as annexure C.21 and closed the evidence on behalf of the complainant.

5.                     The counsel for the Ops tendered into evidence affidavit of one Shri Ankur Aggarwal as annexure R.A and closed the evidence on behalf of Ops.

6.                     We have heard the learned counsel for the parties and have gone through the pleadings as well as documents placed on the file.  The counsel for the complainant reiterated the stand taken in the preliminary objections and drew the attention of this Forum towards authority reported in 2006CPJ(264)(NC) titled as Section 2(1) (d) Consumer-Purchase of goods for commercial purpose-Found defective during warranty-Purchaser consumer-Supplier liable to compensate purchaser by either repairing goods, replacing them or refunding amount”. Further draw the attention of this Forum towards authority reported in 2006(1) CLT p.76 titled as Vijai Prakash vs. The Network Limited, wherein it has been held that, “Section 2(1)(d)(ii)-Consumer-Commercial purpose-Ultrasound scanner-Defect in warranty period-Purchaser of a machine would be a consumer if the defects in machine develops within warranty period even though the machine as purchased for commercial purpose”.  Similarly, drew the attention of this Forum towards authority reported in 1997(1) CLT P.431 titled as Tata Engineering and Locomotive Co. Ltd. And another vs. Ganjanan Y.Mandrekar, wherein it has been held that, “section 2(1), 2 (1) (a), 2(d)-Consumer-Commercial purpose-Tipper truck purchased-Not giving satisfactory service as it had manufacturing defects-Compliant opposite on the ground that vehicle was purchased for commercial purpose-State Commission holding complainant to be consumer as he had bought the truck for his self-employment-Kilometers done by vehicle not conclusive proof that it had no defect-Appeal dismissed”. Lastly prayed for acceptance of compliant.

7.                     On the other hand the learned counsel for the Ops reiterated the stand taken in the written statement and draws the attention of this Forum towards authority reported in 2014(2) CPC P.165 titled as Avery India Limited vs. Kaybee Sulphates Limited wherein it has been held that, “Sections 2 (1) (F) & 2 (1) (D)-Defect-Weigh bridge defect-Respondent/complainant purchased a weigh Machine was purchased for weighing sulphate manufactured for a commercial purpose-Complainant is not a consumer nor the complaint is maintainable under C.P.Act-Order of For a below granting relief of refund of price with interest and cost set aside”.  Lastly prayed for dismissal of complaint.

8.                     After hearing the learned counsel for the parties and going through the pleadings as well as documents placed on the file, it is clear that the complainant got fitted “DUCTED SPLIT DSA 1321 R vide bill dated 26.5.2012 (Annexure C.1) for Rs.2,88,048/- at the premises of the complainant.  The plea taken by the Ops that the complainant is not consumer of the Ops as the units was installed in the commercial premises is not tenable because it has been settled by the Hon’ble Apex Courts in the above mentioned authorities (supra) referred by the complainant that even if the machine was purchased by the complainant for commercial purpose and defects developed in the machine in the warranty period then also the complainant is a consumer and in the present case the unit was installed by the complainant for his showroom for giving better services to their consumers not for gaining any profit from the units installed by the Ops, so it is not a commercial transaction, hence, the complainant is consumer of the Ops.  Secondly, so far as the question of defect arising within the warranty period is concerned; it has been found that the Ops have not filed any evidence to show that the problem had occurred beyond warranty period.  Normally all the compressors of the ACs as well as refrigerators carry warranty of five to seven years but in the present case the Ops have replaced the compressor vide bill dated 17.7.2013 (Annexure C.4) only within two months after expiry of warranty period of one year.  Further the version regarding proper fitting of unit is concerned, the plea taken by the complainant that the unit has not been fitted properly by the engineer of the Ops and were not giving proper cooling has nowhere been specifically denied by the Ops, so the admission is sufficient to prove the deficiency in service on the part of the Ops. 

9.                     In view of the above said discussion, we are of the considered view that the complainant is consumer of the Ops and the defects in the unit installed at the premises of the complainant had arisen within the warranty period, hence, the complainant is entitled for the relief.

10.                   Resultantly, we partly allow the complaint of the complainant by directing the Ops to refund Rs.44,114/- i.e. cost of compressor received from the complainant and to correct the fitting of the unit as per specifications and remove the defects from the units as well as in installation of the units to the satisfaction of the complainant within one month from the date of preparation of copy of this order failing which the complainant is at liberty to invoke the jurisdiction of this Forum as per law.  Copies of this order be supplied to the parties concerned free of costs.  File be consigned to the record-room.

Announced in open Court:25.9.2017.

                                                                                                (SATPAL)

                                                                                                PRESIDENT.

 

 

(VEENA RANI SHEOKAND)                    (S.C.SHARMA)

MEMBER                                                      MEMBER.